Policing Authority must be retained

Speaking in the Dáil on Statements on the Disclosures Tribunal, Labour Justice spokesperson Séan Sherlock made three key points:

• Ministers must account fully and accurately to the Dáil.
• That the Tribunal accepted the sworn evidence of all TDs.
• That the Policing Authority must be retained for openness and accountability.

Deputy Sherlock went on to say:

“Mr Justice Charleton described sitting through the hearings in Dublin Castle as a dispiriting exercise.

And, for those of us who have done so, reading his report is equally dispiriting.

As Judge Charleton wrote: “Every judge is conscious that the task of judging others is a human function. As such, it is fallible.”

The judge will therefore understand that I do not share his every opinion as expressed in this report, particularly on matters of political accountability.

But I do believe it is an impressive exercise in arriving at the truth on factual issues and in securing answers that were previously hidden from us.

I want to concentrate on three aspects that most immediately concern us as public representatives.

I start with the controversy surrounding Deputy Fitzgerald, even though it is far from being the most important aspect of this affair. But we need to get it out of the way.

As has been pointed out by others this week, here and in the media, her Government colleagues have attempted to use the report in order to exonerate Deputy Fitzgerald of a charge she wasn’t accused of.

As a Government member and Minister for Justice, Deputy Frances Fitzgerald’s primary responsibility was to account fully and accurately to this House for the performance of her functions.

The reason she resigned was not because of anything that happened in 2015 but because of what happened in 2017.

Deputy Fitzgerald resigned last November because the Dáil was misled about her knowledge of issues at the O’Higgins commission that took place in May 2015.

And I repeat that this is an issue of political, rather than legal, accountability, best assessed by the members of this House.

What is now clear about the issue at the O’Higgins hearings in May 2015 is that the State Solicitor’s team considered it to be “political dynamite” and Commissioner O’Sullivan considered that she was in an “almost impossible dilemma”.

The Department and then the Minister were notified about what was going on. And Minister Fitzgerald acknowledged that she must have read the email sent to her about it.

She decided not to intervene, and Judge Charleton believes that this was correct. I have no quarrel with that.

Although, carefully, the judge did not say that a Minister could never intervene in such circumstances.

He expressly left it open that a Minister would be fully justified in intervening if in fact false allegations of sexual abuse had been deployed before Judge O’Higgins, in order to unfairly traduce Maurice McCabe.

In any event, in November 2017 my colleague Deputy Alan Kelly submitted parliamentary questions about what was known in the Department of Justice about all of this.

The answers he received were vague and unhelpful, but he persisted.

He might, truthfully, have been told in reply that the Minister was aware of the issue but had decided on legal and official advice not to interfere.

But instead officialdom behaved as if they had something to hide, and as we subsequently found out they did.

The Taoiseach was briefed by his Minister and told the Dáil that the Minister “found out about it [the legal strategy] after the fact, but around the time it was in the public domain when everybody else knew about it as well”.

This simply was not true.

And the subsequent trawl of emails in the Department showed it was not true.

And then, to top it all, we discovered that these emails had not been sent to the tribunal, 10 months after it had been appointed.

And the Minister resigned the following day. The Dáil had been misled about the nature and extent of her knowledge of a matter of live public controversy. In the atmosphere of last November, there was no alternative to the step she took.

Minister Fitzgerald was in charge of the ‘dysfunctional’ Department of Justice as the Taoiseach called it, which oversaw the Charleton Tribunal had asked everyone to provide full documentation to it, but subsequently had to provide multiple boxes of newly ‘discovered’ information.

Nothing in the report published this week points to a vindication in relation to a charge of failing to account fully and accurately to the Dáil.

There is another point I want to make that directly concerns us as public representatives.

Members of this House should be slow to blow our own trumpet, but I don’t think there will be a rush of journalistic or other commentators queueing up to make this point clear.

In his report, Judge Charleton rejects the sworn evidence of two Garda Commissioners and other senior Garda officers.

The evidence of the Secretary General of the Department of Justice is rejected as ‘improbable’. The evidence of Tusla staff is described as ‘wholly unconvincing’.

And the tribunal listed six cases where journalists flatly contradicted each other in evidence, although Judge Charleton had to decide the truth of it in only two of those six cases.

There is in fact only one class of witness whose evidence on all matters of serious contention was accepted by the tribunal.

And that class consists of the members of the Dáil who gave evidence.

On all the factual issues about which they gave evidence, the Tribunal accepted what was said by, Frances Fitzgerald but also by Micheál Martin, John McGuinness, John Deasy, Mick Wallace, Clare Daly, Pat Rabbitte and my Party Leader Brendan Howlin.

The report has a final chapter of recommendations and I believe we need to return to them and consider them in detail, perhaps in committee.

But I believe the Tribunal and its outcome points above all to the importance of this House and its members as a means of securing accountability from Government and from the agencies of the State.

It demonstrates the importance of persistence, of refusing to accept the official line, of listening to outsiders, and of banging again and again at the closed doors until they open up and let in some light.

This was a real exercise in the separation of powers between Dáil and Government.

An exercise in members of the Dáil using their privileged position here to make sure this issue would not go away and to keep advancing it until a formal inquiry became both inevitable and necessary.

This is how accountability in a mature democracy is meant to work.

The Tribunal report demonstrates how much we still have to learn about accountability. Consider this passage, for example, from page 112 of the report: 

“From 2016, no one within TUSLA considered owning up to the serious mistakes that had been made. The solicitors’ letter of complaint on Maurice McCabe’s behalf, sent in response to the letter from TUSLA received in January 2016, was an invitation to give a proper explanation of what had happened. Had that happened, had TUSLA senior management sat down and read the file and then forthrightly replied setting out fully the mistakes that they had made, this tribunal of inquiry would most probably have been avoided.”

There are shades of CervicalCheck here, and the need for an open disclosure policy – a policy of setting out fully and forthrightly the mistakes that have been made.

The final aspect I believe needs highlighting is the impact of what we have learned from Charleton on our response to the recommendations of the O’Toole Commission into the Future of Policing.

As I’ve said, I believe what the Maurice McCabe affair demonstrates is the importance of external oversight by the Dáil of the Government and its Departments and agencies. We need of course to improve the capacity for oversight and to make it far more effective.

But I believe the same lesson must be learned in relation to the Garda Síochána.

My Party called for decades for an external Garda oversight agency. We were determined to break the secretive and damaging relationship between that force and the Department of Justice.

A relationship so vividly demonstrated in this report by the flurry of phone calls at senior level between the Phoenix Park and St Stephen’s Green at times of crisis – calls which no one can later remember making or receiving and whose content is immediately forgotten once the line goes dead.

My Party was determined to secure effective Garda accountability and oversight to an independent external body.

We achieved most of what we wanted when the Policing Authority was finally established.

And that body under its Chair Josephine Feehily has lived up to most of our expectations, although there are to be sure improvements that can be made to the legislation.

That is why it is, to use Judge Charleton’s term, so dispiriting to see now a recommendation to disband the Policing Authority, as an external body securing oversight, and to replace it instead with an in-house board of management.

An in-house board will of necessity become ingrained with an in-house policing mentality. And, if we have learned anything from all of this, it is that the Garda Síochána need much less, not more, of an in-house policing mentality.

They need to be required to demonstrate, fully and in public, that they live up to the same basic standards of fairness, decency and common sense that bind the rest of us.

Or as Judge Charleton puts it at page 294: “Central to those issues is a mentality problem. Where a problem occurs, strongly self-identifying organisations can have a self-protective tendency. That, regrettably, also describes An Garda Síochána. It is beyond a pity that it took independent inquiries to identify obvious problems with what Maurice McCabe was reporting.”

Why on earth would we react to these findings and comments by shunting accountability back inside the force itself, and abolishing outside oversight and scrutiny?

If the Government, and the Dáil, accept that flawed recommendation from the O’Toole Commission, we will show we have learned nothing at all from the McCabe affair and from the Charleton report.

The Garda Síochána do need better structures of management. And the number of bodies and agencies that surround does perhaps need to be rationalised.

But that must not be at the expense of the important principle – which Charleton has taught us again – that policing demands accountability.

As Judge Charleton put it, on page 292:

“A police force is an aspect of the entitlement of a sovereign nation to control its citizens through the rule of law. It exercises primary law enforcement. It is entitled to use force and may be armed. Where respect for the truth fades within such an organisation, where structures of command and accountability break down, and where the police do not offer a complete day of work in exchange for being remunerated by the taxpayer, an essential component of a modern country ceases to function properly. Police action may become fitful, inefficient or even dishonest. This helps no one.

“This tribunal has been about calling that police force to account. The Morris Tribunal was about the same thing. The commission of investigation conducted by Mr Justice Kevin O’Higgins, which reported to the Minister for Justice and Equality on 25 April 2016, was about the same thing.

“Central to these inquiries has been the truth.”

This is not the time to consider abolishing any body whose function is to demand openness, accountability and the truth.